ILR for Suppose- SET(M) or SET (O)

[sheryar.uk]

Dear All,

I have wrote my question in the past before but this time around i am coming with some concrete replies from UKBA regarding my wife case. In brief, my wife came to UK as workpermit (TWES) dependant, subsequently to that i got my ILR on long residency basis , that was a combination of TWES work permit and Student visa. My wife applied for further to remain as suppose of setteled person in UK FLR(M) and recieved 2 years extention which is to expire in July 2013. Now i sent an email to UKBA asking if she can apply for ILR right now, as we dont want to wait until July 2013. Please see below my detailed email to UKBA and thier reply.


MY 1st EMAIL TO UKBA
Dear Sir / Madam

I came to UK on March 2007 as dependent of a work permit (TWES) i.e Trainingand Word Experience Work Permit holder.

My husband got ILR in March 2011 based on 10 years legal stay in UnitedKingdom and I successfully switched myvisa in May 2011 to FLR(M) (as a suppose of person settled in the UK) which is validtill June 2013.

I have now spent 5 years in the UK i.e. 4 years and 1 months (March2007 to April 2011 ) as dependent of (TWES) work permit holder and 1 year and 4month (May -2011 to Sept-2012)on FLR (M).

Now my husband is a British national and my two sons who born here arealso British nationals, I have been living here for the last 5 years 5 monthsnow as my husband’s dependant.

Could you kindly advise, if I can right now apply for ILR underparagraph 196D(ii) of the Rules as the spouse of a person who has ILR and whohad limited leave to enter or remain in the UK as a work permit(TWES) holderimmediately before being granted ILR and after meeting the requirements in196D(iii) – (vi). OR do I need to wait until 22/06/2013 and then apply for ILR?

I have booked a PEO appointment at UKBA Solihull to apply for ILR onSET(M) on 04/10/2012 and I seriously would not like to waste £1,377 on myapplication if it is not to be successful. Therefore, your advice is highly crucialin this regard.

(Please note that TWES work permit was not issuedunder PBS category).

Faithfuly Yours

REPLY FROM UKBA IS BELOW

Dear XXXX

Thank you for your email.

The requirements for ILR as the spouse of a person settled in the UK, whose leave to enter or remain was granted under Part 8 of the Immigration Rules before the Rules change from 9 July 2012, are in paragraph 287(a). There is no provision under paragraph 287(a) for leave as the dependant of a work permit holder to be amalgamated with leave as the spouse of a person settled in the UK to count towards the 2 years probationary period for ILR. Therefore, the spouse of a person settled in the UK would need to complete the 2 years probationary period in that category.

However, based on the information given in your email you would have been eligible to apply for further leave to remain under paragraph 196A of the Rules when your husband obtained ILR immediately following limited leave as a work permit holder. If you had remained in the dependant of a work permit holder category your ILR application would be considered under paragraph 196D of the Rules. There is no probationary period for this route.

Therefore, as you didn't need to "switch" into the spouse of a settled person category when you obtained further leave to remain you can apply for ILR under paragraph 196D(ii) of the Rules. You will of course have to meet the other requirements in paragraph 196D to apply.

Please enclose a copy of this email with your ILR application.

XXXX

Operational Policy and Rules Unit( Settlement Operational Policy)| Strategy andIntelligence Directorate|5th Floor,Captial Building , |Old Hall St,Liverpool L3 9PP

MY 2ND EMAIL TO UKBA

Dear XXX



Thank you very much for the confirmation that I ameligible to apply for ILR under paragraph 196D (ii) provided I meet other requirements as per paragraph 196D.

As stated in my earlier email that my current leaveis FLR(M) as I swtihced my status from "workpermit holder dependant" to "suppose of person setteled in the UK" but since I am going to apply for ILR under section 196D(ii) of therules, can you please let me know that which application form I must use , isit SET(M) or SET (O)?

Kind regards


UKBA REPLY TO MY 2nd EMAIL

Dear XXX



When applying for settlement as the spouse of a settled person who previously held leave as a WPH under the rules 128 – 193, the applicant should use the form SET(O).

|Operational Policy and Rules Unit( Settlement Operational Policy)| Strategy andIntelligence Directorate|5th Floor,Captial Building , |Old Hall St,Liverpool L3 9PP


I remember Shushdmehta(MODERATOR) aad Lucapooca (GURU)told me before that as i was holding TWES work permit , my wife could not apply unless she completes her 2 year leave on FLR (M), whereas UKBA describes clearly that she can apply ILR under 196D(ii) paragraph!

I welcome your comments and thought on this topic

[MPH80]

There are two contradictions in your emails:

My husband got ILR in March 2011 based on 10 years legal stay in UnitedKingdom

your husband obtained ILR immediately following limited leave as a work permit holder

If you obtained his ILR under the 10 year rules, then you got it under paragraph 276. If you got it under the work permit - you used paragraph 134.

If you're under 276 - then the paragraphs quoted by UKBA for you (196D) do not apply - as they only apply to spouses of people who applied under 128-193 (but not 135l-135k).

So I think the original advice is right given your first email - in that you need to wait for your wife's FLR(M) to be complete (i.e. another 8 months).

M.

[sheryar.uk]

Thank MPH80 for your comments, i regard your views!

I asked the UKBA same question kind of question and UKBA replied very clearly about this please see below.

MY EMAIL TO UKBA

Dear Pat,

I truly appreciate your detailed response to my initial query regarding my wife ILR application.

I would like to highlight few points so it may help you understand her circumstance, i would be brief and precise.

I was on the work permit (TWES) category which does not lead to settelement and my wife came as a dependant of TWES work permit holder but I received my ILR on the basis of long residency (10 years ) this would not have allowed my wife to apply for ILR with me as my dependant as she did not complete her 10 years in the UK ,hence she did not change her status in error. I was advised to change her status on FLR(M) as suppose of setteled person in the UK, which she did on 22/06/2011 (this leave will expire on 22/06/2013).

Now i am a british national and my two sons who born here are also british nationals , she has been living here for the last 5 years 3 months now as my dependant i.e 4 years 2 months as dependant of TWES work permit holder and 1 year and 1 month on FLR(M) as suppose of setteled person in the UK.

As previously advised by you, can she still apply for ILR under paragraph 196D(ii) of the Rules as the spouse of a person who has ILR who had limited leave to enter or remain in the UK as a work permit holder immediately before being granted ILR and after meeting the requirements in 196D(iii) – (vi). OR does she need to wait until 22/06/2013 and then apply for ILR?

I truly appreciate your efforts.
Kind regards
Sheryar Ahmed

REPLY FROM UKBA TO ME

Dear Sheryar Ahmed



Thank you for your further email.



Your wife will be eligible to apply for ILR under paragraph 196D provided that:

· She was granted leave to enter as the dependant spouse of a WP holder; and
· You obtained ILR immediately following leave as a WP holder – it doesn’t matter that you obtained ILR in the long residency category.

If the above requirements do not apply your wife will need to complete2 years leave as the spouse of a person present and settled in the United Kingdom before applying for ILR under paragraph 287(a).

I hope this clarifies the position.

Regards

xxx
Settlement Operational Policy

What would you say now ? You think thats clarifies the contradiction?

[MPH80]

Ok - I've re-read the paragraph and I think they are right - but the key is which paragraph you were originally given leave.

(ii) is married to or a civil partner of a person who has indefinite leave to remain in the United Kingdom and who had limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) immediately before being granted indefinite leave to remain; and

(my bolding).

I misread this as "you had to have applied for ILR under those paragraphs" - where as what it actually says is - "you should have had leave under these paragraphs PRIOR to application for ILR".

However, given all the work permit rules were in the 128-134 section - you've got to assume that was the paragraphs under which you had your leave.

So I think they are right - which is amazing for UKBA.

M.

[sheryar.uk]

To be honest, after UKBA first reply i thought exactly same as you did in your first comment but then after getting the 2nd reply it become more clear that she actually can apply ILR under 196D (ii) without having to wait for 8 more month. and true amazing for UKBA to reply correctly.

And is this right that all the work permits were issued under section 128-134 including TWES work permit?

I have booked her appointment under SET(M) application as i was not aware at that time that she will be applying under section 196D but it appears to be that she needs to use SET(O), can she use the same appointment for SET(O) or we need to re-book the another appointment?

Thank you very much for your comments and help!